Now you see it – now you don’t ! Spoliation of evidence

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posted to protect the doctors’ fancy sports cars. He immediately secured the videotape and watched until his client’s accident was replayed. Using the videotape evidence, he was able to track down the Defendant driver, who was charged and convicted. The Virginia Trial Lawyer was then able to win the injured nurse’s workers compensation case and also settle her negligence case for the Defendant’s full policy limits !

Things did not go so well for the plaintiff in the slip-and-fall personal injury case of Stroupe v. Wal-Mart Stores, from the United States District Court, Eastern District, Richmond Virginia Division, case #3:07cv267 (Virginia Lawyers Weekly #007-3-445). On October 29, 2007 Federal Magistrate Judge Dohnal denied the plaintiff’s lawyer’s request for a jury instruction about he destruction of evidence. The plaintiff’s lawyer wanted the court to tell the jury that they could hold (the absence of the videotape) against the defendant Wal-Mart Store.

The “Spoliation of Evidence Rule” allows the drawing of an adverse inference AGAINST the party whose intentional conduct causes the destruction of evidence; fails to preserve important, material evidence or produce evidence. In other words, if a Defendant loses or destroys an important item of evidence, a trial court can tell a jury that they can hold it against that Defendant. The inference requires a showing that the party knew the evidence was relevant to some issue at trial and that their willful conduct resulted in its loss or destruction.

While the Abrams Landau team routinely secures this important evidence in cases where we are retained early on in the case, the plaintiff in the Stroupe case was not so lucky. The Defendant Wal-Mart has a policy, like many “big box retail stores’ that the Landau Law Shop has sued, of keeping surveillance videos for only 30 days. In the Stroupe case the Defendant claimed that the tapes were destroyed “in the regular course of business.” The Defendant’s employees decided it was not relevant. They further advised the Court that other cameras that might have covered the area where the plaintiff was injured “were dummy cameras with no recording capability.” Because the plaintiff in the Stroupe case failed to show that any videotapes that were destroyed by the Defendant store were relevant to the pending litigation, the Federal Court refused to give the adverse jury instruction.

Virginia “Super Lawyer” Landau reminds innocent victims that the earlier they contact a competent, experienced trial lawyer, the better the chances of saving and securing the videotapes, DVDs, and CDs that may contain important evidence in their cases. Virginia Trial Lawyer Doug Landau points out that if you contact us too late, these tapes may be recorded over, destroyed or lost. Once this happens, there is nothing any of us can do to bring this lost evidence back. In this day and age where people like to watch television, videotape evidence, even without the “audio” is compelling, notes Doug Landau. “If you don’t save it, you lose it !” Herndon injury lawyer Doug Landau sadly reminds us.

The team at ABRAMS LANDAU recommends that if you or someone you know is injured in an accident or attack, call us at once so that we (or our investigators) can secure the surveillance tapes, CDs and DVDs BEFORE THEY ARE DESTROYED OR COPIED OVER !

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